Whether the trial court acted appropriately in denying the motion for new trial.

FACTS

(In this brief, references to the Trial Transcript for August 19, 2010 will be referred to as "T1"; "T2" will be used for August 20, 2010).

The Defendant was charged with Sexual Assault in violation of Section 12.1-20-07 of the North Dakota Century Code. A.3. Especially the allegation was that on or about July 16, 2009, in Morton County, North Dakota, the defendant, older than age 22, had sexual contact with S.B. a minor 16 years of age. A.3.

The following witnesses testified in the prosecution case in chief. Jon Vanderhoef, Judy Mauer, Shannon Johnson, Amy Gebhardt and S.B. A summary of the testimony of each witness is as follows.

Jon Vanderhoef testified as an investigator for the Mandan Police Department. Det. Vanderhoef identified the Defendant in court. T1, page 27, line 24. Det. Vanderhoef's testimony in court included that he took a statement from the victim on July 17, 2009, at Medcenter One, Bismarck. T1, page 27, line 24. Further, that he was the chain of custody officer for the physical evidence resulting from the SANE exam of the victim. T1, page 28, line 21.

Det. Vanderhoef testified that the location the allegations took place was at a residential address in Mandan, Morton County, North Dakota. T1, page 29, line 19. This was the residence of the Defendant and the residence was searched with consent. T1, page 33, line 19.

Det. Vanderhoef understood from S.B.'s statement that the assault took place in her room on her bed, so he took the bed sheets and blankets during the search. T1, page 34, line 2. He was also the chain of custody for the bed sheets. T1, page 34, line 17.

The prosecutor did not ask the detective how old the Defendant was. During the Defendant's case in chief, the Defendant testified his age was 34. T1, page 141, line 16.

Shannon Johnson was the forensic scientist that did the preliminary work on the DNA analysis. T1, page 60, line 17.

Amy Gebhardt testified that she is employed by the North Dakota State Crime Lab, has worked for them for approximately 12 years and currently does DNA analysis on items of evidence submitted by law enforcement agencies. T1, page 71, line 3.

Analyst Gebhardt was able to develop profiles from the known samples of the Defendant and S.B. T1, page 80, line 20. Further, she analyzed the mixture developed from the cuttings of the bed sheets. T1, page 81, line 7. She found there was more than one profile in the mixture. T1, page 82, line 5.

Following up, Ms. Gebhardt was able to develop a major and a minor profile from the mix. T1, page 82, line 21. The major profile as a match to the known sample of S.B. T1, page 83, line 1. The minor profile was a match to the known sample of the Defendant. T1, page 83, line 1.

There was semen present, meaning human male ejaculate. T1, page 83, line 5. The minor contributor was a partial profile, specifically 23/30 alleles were matched at standard. T1, page 83, line 21. The partial profile does not exclude the Defendant. T1, page 84, line 2. Further, statistically the profile rules out the population of the United States. T1, page 84, line 22.

Judy Mauer testified that by profession she is a registered nurse. T1, page 46, line 20. Further, that she has additional training that qualifies her as a Sexual Assault Nurse Examiner (SANE), which is an RN specially trained in examining victims for forensic purposes. T1, page 45, line 20. Nurse Mauer performed a sexual assault exam on S.B. on July 17, 2009. T1, page 49, line 1. At the time, S.B. was sixteen years of age. T1, page 49, line 10. Pursuant to the sexual assault examination Nurse Mauer secured the DNA sample from victim. T1, page 49, line 18.

In addition to performing procedures for collection of samples for DNA purposes, Nurse Mauer performed a vaginal examination on the victim. T1, page 51, line 13. Nurse Mauer's observations included that the labia majora was quite red, like it was very irritated. T1, page 52, line 12. Nurse Mauer also observed that the labia minora was also quite red and irritated. T1, page 52, line 21.

A summary of the testimony of S.B. is that she pretty much had no recollection of anything whatsoever. T1, page 97, line 4. When one considers the testimony of S.B.'s mother, in the defense case in chief, it includes the fact that the mother brought S.B. back to the perpetrator before taking her to the SANE examination, T1, page 162, line 1, the testimony of S.B. is no longer surprising. The victim testified her age at the time in question was 16. T1, page 96, line 10.

During the defense case in chief, the Defendant testified that he and his wife had sex on the bed in question. T1, page 137, line 3. That was his explanation for how his semen got mixed up with the victim's DNA. T1, page 140, line 11.

On rebuttal, Amy Gebhardt testified to two things. First, that there was no third profile in the DNA mixture. T2, page 18, line 19. Second, that there was no degradation. T2, page 18, line 24.

Judge Anderson in chambers regarding the issues raised stated:

The issue that Mr. Morrow raises mostly although he has issues about whether or not there was any proof that Billy Joe Kinsella was at least 22 years of age and he also then today addressed item number two, whether Billy knowingly had sexual contact with SB but I will go through each of the elements as I see it just for the record for purposes of a potential appeal, if it comes to that.

The Court finds that the evidence shows that the date, July 16, 2009, on or about has been proven. There is an issue the next morning it came to light there is an (sic) evidence an investigation. I think the date is not in question.

Morton County, North Dakota is not in question.

Number two, the defendant knowingly had sexual contact with SB. As the Court listened to the State's evidence yesterday the fact that the fluids or the biological matter was mixed and in certain spots on the bedsheets I think an inference can be drawn ­ reasonable inference in favor of the State that they were deposited at the same time.

It may be a question of fact for the jury to consider in light of any other evidence that is presented but I think the reasonable inference can be drawn that that is a likely possibility and perhaps using common sense and experience that the jury is allowed to use, the Court is allowed to use I think the likelihood as Mr. Grosinger mentions in his argument deposited the same spot on the sheets at a certain time unlikely and so I don't think that that detracts from the inference that they were likely deposited at the same time.

Also based upon your questions, Mr. Morrow, there is a possibility that the sheets could have been washed (sic) that Mr. Kinsella semen might have still been there at that particular spots after washing. I still find that there is sufficient evidence for the jury to conclude that they were deposited at the same time because of the location.

Knowingly is inferred by intent. I guess I don't think ­ I don't think you delivered penile ejaculation, I guess I was ­ yeah, I just don't find that there was an issue at the time when I ruled on the Rule 29 sexual contact I think the fact that there is semen and there are skin cells gives an inference that there was some sexual contact, especially if you take the inference that they occurred together and they were mixed.

There was the SAME nurse's exam with redness. There could be redness from any source. I also at the time that the State presented their case I don't think the inference to be drawn from the fact that sexual assault was reported and the SANE examination was completed could lead the jury, I think to believe that there is a reason for that.

That is that the State had ­ they don't just pop in and start that. I mean that's obviously a sexual related investigation that was prompted by something that somebody at the Kinsella household had told the officers and so although we don't have that exact information because SB can't remember it I think there is a reasonable inference that could be drawn that there was sexual contact that started this.

Drawing that inference in favor of the State we had the evidence that SB was 15 years of age or older and under the age that she was still a minor. She was 16. The defendant was an adult as to his age at that time. I think SB testified that she lived on and off with her dad and her mother for a couple of years and she had a step dad.

Obviously, common sense would indicate he was over 22 at the time just because it appeared from her testimony that he had been married to her mother for a number of years and I don't think her mother would have ­ maybe it would have been 16. I guess that would be an inference that he was at least 22. I think also looking at him he looks at least older than 23 at this point so I think an inference from the jury could call that on that he was over 22.

T2, page 32, line 19 through T2, page 35, line 19.

The Defendant was convicted by verdict of guilty. Judgment was entered leading to the notice of this appeal. A.10.

ARGUMENT

There was sufficient evidence to sustain the jury verdict.

The law in regard to challenges based on sufficiency of the evidence is well established in this Court. See e.g., State v. Huether, 2010 N.D. 233, 790 N.W.2d 901, State v. Zahn, 2007 ND 2, 725 N.W.2d 894.

The burden is on the defendant to show that no rational finder of fact could have found the defendant guilty after viewing the evidence in the light most favorable to the prosecution and all inferences are drawn in the favor of the prosecution. Huether, at ¶ 20.

In the instant case there is evidence that the Defendant's semen was mixed up with the victim's DNA. This evidence was recovered from a bed sheet taken from the bed used by the victim in the Defendant's home. Coupled with this evidence was the observation of the Sexual Assault Nurse Examiner to the redness in the victim's pubic area. The observation of the SANE was in the same time period as the initial report, likewise was the recovery of the bed sheet. That time period being July 16-17, 2009. The victim's testimony was that she would have been 16 years of age at the time in question. As well, the Defendant's testimony was that he was above the age of 22 at the time of occurrence. These facts are sufficient to sustain the verdict of guilty on the allegation of Sexual Assault.

Sexual Assault is defined under Section 12.1-20-07 of the North Dakota Century Code and consists of a sexual contact perpetrated on another under circumstances that the victim finds the contact offensive, or the law deems the sexual contact illegal due to the circumstance of the victim. In the instant case the latter was the substance of the allegation. Specifically the allegation was that the victim was between the ages of 15 and 18. The matter is a Class C Felony due to the age of the Defendant being in excess of age 22.

In making the determination of sufficiency of the evidence the defense forwards two specific issues. That of proof of the age of the defendant and that of proof of intent.

In regard to the proof of the age of the Defendant the defense argues that there was no proof of age made in the prosecution case in chief. The requirement to make the offense a Felony, however, is not proving a specific age of the defendant; it is merely showing that the defendant was an age in excess of twenty-two. N.D.C.C. 12.1-20-07(2).

This issue was raised by the defense in the original Rule 29 Motion for Acquittal at the close of the prosecution case in chief. As indicated in the Statement of Facts, the Trial Judge, Judge Anderson, addressed the issue and made a record on that issue. Judge Anderson put on the record that the Defendant appears to be in excess of age twenty-two. In addition, Judge Anderson made reference to what is in essence, the step-father/step-daughter relationship between the Defendant and the victim. Judge Anderson indicated the inference of the number of years in the relationship between the Defendant and his wife could be used in consideration. Judge Anderson added that the jury could use its common sense in making the determination that the Defendant was in excess of age 22. T2, page 35, line 6.

Judge Anderson did not abuse her discretion in this determination and in the ruling on the original Rule 29 Motion. Jury instructions routinely tell the jurors they are permitted to use their common sense in the determination of the fact. Judges as well are allowed to do the same.

In the instant case the threshold for Felony status is that the defendant must be in excess of twenty-two years of age. The jury was properly instructed on this issue. The defense had the opportunity to argue to the jury as well that this issue was not proved. The jury found that is was proved.

In light of the record made by Judge Anderson, a reasonable person could have found that the Defendant was above the age of twenty-two. The appearance of the Defendant coupled with his life relationships indicated in the prosecution case in chief allow for the finding. Further, there was no evidence to the contrary in the prosecution case in chief. Finally, during the defense case in chief, the age of the Defendant was established by the testimony of the Defendant himself.

The second specific argument presented by the defense that there was insufficient evidence regarding proof of intent. Contrary to the defense argument that there was no proof of intent, the State argues that the physical evidence shows that there was intent. Particularly in light of the fact that the body fluid recovered from the bed sheet cutting was in fact the semen of the Defendant points toward the element of knowingly (N.D.C.C. 12.1-20-07 and 12.1-02-02).

Regarding proof of intent by relying on circumstantial evidence, the State relies on North Dakota Jury Instruction K-5.38 which states:

Intent may be proved by circumstantial evidence. Indeed, it can rarely be established by any other means. We simply cannot look into the head or mind of another person. But you may infer the Defendant's intent from all of the surrounding circumstances.

You may consider any statement made or act done or omitted by the Defendant and all the facts and circumstances in evidence which indicate the Defendant's state of mind.

See also, United States v. Gambia, 564 F2d 22 (8th Cir. 1977).

The circumstantial evidence is the Defendant's semen was intertwined with the victim's cellular material, on a bed sheet. The SANE examination adds that the victim had irritation and redness in her pubic area. The State argues that under these circumstances the jury is entitled to decide that the act was done with intent and that the other alternative, by accident or serendipity should be ruled out.

Therefore, in regard to the issue of sufficiency of the evidence in general and the issues of age of the Defendant and intent specifically, the State of North Dakota argues the defense has no argument with merit.

The Trial Court did not abuse discretion and acted appropriately in denying the motion for new trial.

Defense motions for new trial are authorized under Rule 33 of the North Dakota Rules of Criminal Procedure. The Rule authorizes the trial court to grant a new trial if the interests of justice so require. The State argues that in the instant case the interests of justice require affirming the judgment of the Trial Court.

For the Defendant to prevail on the appeal of the denial of the motion for new trial, the defense must show that the Trial Court acted unreasonable, arbitrarily or unconscionably. State v. Klose, 2003 ND 39, 657 N.W.2d 276, ¶ 18. By precedent this is required to prove the trial court abused its discretion. Id.

In the order denying the motion for new trial, the Trial Court cited the reasons stated on the record as basis for the denial. A.9. The large part of the Trial Court's reasoning is found at T2, pages 32-35. Within that reasoning the Trial Court identifies the essential elements of the offense, and states the facts that constitute the elements. The Trial Court determines that the jury, if it chooses, should be allowed to determine the evidence.

Within the Trial Court's reasoning the issues of the age of the Defendant and the intent of the Defendant were addressed. The Trial Court stated its reasoning for how the jury could choose to find the Defendant was in excess of 22 years of age based on the appearance of the Defendant and the testimony to the family situation. The Trial Court addressed the issue of intent, and the lack of testimony from the victim herself. The Trial Court again reasoned appropriately that there was sufficient evidence to support a finding, were the jury to choose to do so.

The Trial Court acted appropriately and did not abuse discretion under these circumstances.

State v. Kringstad, 353 N.W.2d 302 (ND 1984) cited by the defense does raise the issue of weighing the evidence in regard to motion for new trial. In the instant case each of the defense witnesses was related to the defendant by blood or marriage. The most of the State's evidence was objective and scientific. The State argues that the issue of weighing the instant case need not be addressed.

It is important to distinguish the precedent State v. Holy Bull, 238 N.W.2d 52 (ND 1975). In that precedent a conviction was reversed on the basis that the only thing that tied the defendant to the offense was a palm print on a vehicle. The instant case is distinguishable because the Defendant is connected to the scene of the crime and every other aspect of the crime.

The State argues the defense is attempting to analogize the handprint of Holy Bull to the DNA mixture in the instant case. The State argues the DNA mixture is substantially more compelling than the hand print of the Holy Bull case.

To start, the DNA mixture contains semen. This fact places the analysis squarely in the context of sexual offense. The major contributor to the mixture is a DNA profile match to the known sample of the victim. The minor contributor from the mixture is a DNA match to the Defendant. The location of the DNA mixture was on the victim's bed sheet.

The surrounding circumstances place the Defendant in the proximity of the offense both in terms of time and place. The examination performed by the Sexual Assault Nurse Examiner details redness to the vaginal area of the victim, which corroborates the sexual assault.

These facts add up to proof of the sexual assault beyond a reasonable doubt. On that basis it is not possible for the defense to prove that the Trial Court acted unreasonably, arbitrarily, or unconscionably in the denial of the motion for new trial.

The actions of the Trial Court in the instant case have been consistent with preventing a manifest injustice. The defense has not met the burden of proving that the Trial Court acted in a fashion that abused discretion. Therefore this issue is without merit.

CONCLUSION

The State of North Dakota based on the arguments presented above requests the Court affirm the judgment of the District Court in all respects.